State of Tennessee v. Robert Gentry Galbreath

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 19, 2002
STATE OF TENNESSEE v. ROBERT GENTRY GALBREATH
Direct Appeal from the Circuit Court for Bedford County
No. 14,926 F. Lee Russell, Judge
No. M2001-02495-CCA-R3-CD - Filed July 26, 2002
A Bedford County jury convicted the Defendant of twelve counts of obtaining a controlled
substance, Hydrocodone, by fraud during the period from August 15, 2000 through September 8,
2000. The trial court sentenced the Defendant to twelve years on each count and imposed a fine of
$2,000 for each count. The trial court ordered that counts 1-4 run concurrently; that counts 5-8 run
concurrently, but consecutive to counts 1-4; and that counts 9-12 run concurrently, but consecutive
to all other counts, for an effective sentence of thirty-six years. On appeal, the Defendant contends
that the evidence is not sufficient to support eleven of his twelve convictions for fraud and that the
trial court erred in sentencing him to thirty-six years in prison. Finding no error, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN
E. GLENN, JJ., joined.
Larry F. Wallace, Jr., Shelbyville, Tennessee (on appeal), and Richard Dugger, Shelbyville,
Tennessee (on appeal and at trial), for the Appellant, Robert Gentry Galbreath.
Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; William M. McCown, District Attorney General; and Michael D. Randles, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
I. FACTS
The following evidence was presented at the Defendant’s trial: On September 7, 2000,
Eckerd’s pharmacist Chris Crafford received a message from a Dr. Barry Beck in Nashville calling
in a prescription for a Terry Sanders. The call-in prescription was for Hydrocodone. Since Crafford
was unfamiliar with Dr. Beck, he called Dr. Beck’s office to verify the prescription. Dr. Beck was
not in at the time; however, a nurse in his office told Crafford that Terry Sanders was not a patient
of Dr. Beck’s. Later, Dr. Beck called Crafford and confirmed that he did not call in such a
prescription. Crafford then called Agent Thomas Biele of the 17th Judicial District Drug Task Force
and told him that someone posing as Dr. Beck had called in a prescription. Agent Biele told Crafford
to fill the prescription and to call him as soon as someone attempted to pick it up.
The next day, Agent Biele received a call that someone was in the store to pick up the
prescription. Agent Biele immediately went to the store. The clerk who had called Agent Biele gave
Biele a physical description of the person picking up the prescription. Agent Biele saw the
Defendant pay for and receive the prescription. Agent Biele then followed the Defendant outside,
observed the Defendant take the prescription bottle out of the bag, and observed the Defendant
attempt to throw away the bag. Agent Biele asked the Defendant for the crumpled white bag and
identified himself as an agent for the 17th Judicial District Drug Task Force. Agent Biele then asked
the Defendant for identification, and the Defendant replied that he did not have any. Agent Biele
searched the Defendant and found pieces of paper on the Defendant’s person on which were written
the names and Drug Enforcement Agency (DEA) numbers1 of Dr. Beck and another physician, Dr.
Mack, as well as the names and phone numbers of Terry Sanders and Kevin Green. The Defendant
then identified himself as Robert Galbreath from Columbia, Tennessee and stated that the agent “had
him” and that he would fully cooperate.
The Defendant was arrested and transported to the police station where he was read his
Miranda rights before being interrogated. The Defendant agreed to talk to police and signed a waiver
of his rights. The Defendant informed Agent Biele that he had fraudulently obtained prescription
drugs at Eckerd’s on previous occasions, using three different names: Terry Sanders, Kevin Green,
and Tammy Stewart. According to the Defendant, to obtain fraudulent prescriptions, he went to
doctors’ offices, copied their DEA numbers off of prescription pads, and then called pharmacies
using these numbers. Agent Biele checked the phone numbers for the names written on the pieces
of paper found on the Defendant’s person and discovered that the numbers did not correspond to the
doctors’ names. Agent Biele then returned to the Eckerd’s store and requested data sheets on the
names provided by the Defendant. Agent Biele found twelve prescriptions prescribed by Dr. Beck
and Dr. Mack for Terry Sanders, Kevin Green, and Tammy Stewart. They were prescribed on
August 15, 17, 19, 22, 23, 26, 27, 29, and 30, as well as on September 1, 2, and 8, 2000. Dr. Beck
and Dr. Mack confirmed by phone and by letter that none of the three individuals were their patients.
Following the trial, a sentencing hearing was held on August 2, 2001. Certified and
uncertified copies of seven convictions for forgery, ten convictions for passing forged instruments
and one conviction for criminal attempt were offered into evidence. The Defendant admitted to
attempting to smuggle drugs into jail on more than one occasion. He also admitted that his probation
had been revoked on more than one occasion. At the time of the sentencing hearing, the Defendant
had twelve other prescription fraud charges in another county pending against him, for which he was
1
Chris Crafford testified that DEA numbers are identification numbers assigned by the federal government
to doctor s permittin g them to legally pr escribe co ntrolled su bstances.
-2-
out on bond. The Defendant was also on supervised probation for another fraudulent prescription
charge when he committed the crimes in the instant case.
Since the Defendant had seven prior felony convictions, the trial court classified him as a
career criminal. As a career criminal convicted of a Class D felony, see Tenn. Code Ann. § 53-11-
402(b)(1), the Defendant was subject to a sentencing range of twelve to sixty years on each of the
twelve counts of obtaining a controlled substance by fraud. The trial court sentenced the Defendant
to twelve years on each count, with counts 1-4 running concurrently, counts 5-8 running
concurrently, and counts 9-12 running concurrently. Each of the three sets of sentences, counts 1-4,
counts 5-8, and counts 9-12, were to run consecutively with each other. The Defendant thus received
an effective sentence of thirty-six years. The Defendant also received a fine of $2,000 on each count.
II. ANALYSIS
A. Sufficiency of the Evidence
The Defendant first argues that the evidence was not sufficient to convict him of the eleven
prior instances of obtaining prescription drugs by fraud in violation of Tennessee Code Annotated
§ 53-11-402(a)(3). Tennessee Code Annotated § 53-11-402(a) provides, in pertinent part, as
follows:
It is unlawful for any person knowingly or intentionally to:
....
. . . [a]cquire or obtain, or attempt to acquire or attempt to obtain,
possession of a controlled substance by misrepresentation, fraud,
forgery, deception or subterfuge. Any person who violates this
subdivision may, upon first conviction, have such sentence suspended
and may as a condition of the suspension be required to participate in
a program of rehabilitation at a drug treatment facility operated by the
state or a comprehensive community mental health center.
Id. The Defendant argues that Agent Biele arrested him on the sole occasion when he sought to
fraudulently obtain prescription drugs and that the evidence presented to support convictions for the
other eleven occasions was circumstantial. The Defendant further argues that the jury could not have
found him guilty beyond a reasonable doubt based solely on circumstantial evidence.
When an accused challenges the sufficiency of the evidence, an appellate court’s standard
of review is whether, after considering the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Duncan, 698
S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State v.
Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).
-3-
In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859.
This Court must afford the State of Tennessee the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the evidence.
State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. Id.
The evidence presented during the Defendant’s trial was sufficient beyond a reasonable doubt
to support the verdict of the jury. Here, the jury heard proof that on the date of the Defendant’s
arrest, Agent Biele witnessed the Defendant commit the alleged offense just prior to arresting him.
At the time of his arrest, the Defendant had pieces of paper in his pocket on which the DEA numbers
of Dr. Beck and Dr. Mack were written. Furthermore, the Defendant admitted to Agent Biele that
he had obtained prescriptions from Eckerd’s prior to this instance. Moreover, Dr. Beck and Dr.
Mack confirmed that the names the Defendant had used were not patients of either doctor. Finally,
Agent Biele confirmed the existence of a total of twelve fraudulent prescriptions obtained using the
two physicians’ names written on pieces of paper found on the Defendant’s person and using patient
names provided by the Defendant to Agent Biele. We conclude that this is sufficient evidence to
support all twelve of the Defendant’s convictions.
B. Sentencing
The Defendant argues that the trial court erred in ordering him to serve his sentences
consecutively. When a criminal defendant challenges the length, range, or manner of service of a
sentence, the reviewing court must conduct a de novo review of the sentence with a presumption that
the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This
presumption, however, “is conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). In the event that the record fails to show such consideration, the
review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992).
In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then determines the specific sentence and the propriety
of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the
sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to
sentencing alternatives, (4) the nature and characteristics of the criminal conduct involved, (5)
evidence and information offered by the parties on the enhancement and mitigating factors, (6) any
-4-
statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).
The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is
the minimum within the applicable range unless there are enhancement or mitigating factors present.
Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start
at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and
then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e).
The weight to be given each factor is left to the discretion of the trial judge. Shelton, 854 S.W.2d
at 123. However, the sentence must be adequately supported by the record and comply with the
purposes and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d 229, 237
(Tenn. 1986).
When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Because the record in this
case indicates that the trial court adequately considered the enhancement and mitigating factors as
well as the underlying facts, our review is de novo with a presumption of correctness.
If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence "even if we would have
preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.
In this case, the Defendant challenges the determination of the trial court to run his sentences
consecutively. The Defendant argues that this determination by the trial court is contrary to the
purpose of Tennessee Code Annotated § 40-35-102, which is primarily to “promote justice.” The
Defendant believes that he should have received a single twelve-year sentence to be served
consecutive to any other sentence he might have had pending at the time from other cases.
Whether concurrent or consecutive sentences should be imposed is within the sole discretion
of the trial court. See Tenn. Code Ann. §40-20-111(a). A trial court may order multiple sentences
to run consecutively if it finds by a preponderance of the evidence that one or more of certain criteria
apply. See Tenn. Code Ann. § 40-35-114(b)(1)-(7). In this case, the trial court applied the following
factors: (1) “[t]he defendant is an offender whose record of criminal activity is extensive,” Tenn
Code Ann. § 40-35-115(b)(2), and (2) “[t]he defendant is sentenced for an offense committed while
-5-
on probation . . . .” Id. § 40-35-115(b)(6). The trial court found that the Defendant’s history of prior
convictions and the commission of all twelve of these crimes while he was on probation warranted
the determination that the sentences run consecutively. The presentence report supports these
determinations by the trial court: The presentence report reveals that the Defendant has a criminal
history of numerous prior convictions and that the Defendant was on probation at the time that he
committed the offenses in this case. We thus conclude that imposition of consecutive sentences in
this case was proper.
Accordingly, the judgment of the trial court is AFFIRMED.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
-6-